NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2010
Decided October 14, 2010
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐1014
PATRICIA MILLIKEN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District
of Illinois, Western Division.
v.
No. 3:08‐cv‐50144
MICHAEL J. ASTRUE, Commissioner of
Social Security, P. Michael Mahoney,
Defendant‐Appellee. Magistrate Judge.
O R D E R
Patricia Milliken applied for Disability Insurance Benefits alleging disability due to
multiple sclerosis (“MS”), right shoulder pain, and a back injury. An Administrative Law Judge
(“ALJ”) decided that Milliken was not disabled within the meaning of the Social Security Act
through her date last insured. The district court upheld the denial of benefits. Milliken appeals,
and we affirm.
I. Background
No. 10‐1014 Page 2
Milliken alleges disability from MS, right shoulder pain, and a back injury. She had worked
in an assembly job, but quit in 1996 because of problems using her hands. Milliken’s disability
application was denied initially and on reconsideration. She requested a hearing before an ALJ.
ALJ Maren Dougherty held a hearing on August 13, 2007, at which Milliken, represented by
counsel; her daughter; a medical expert; and a vocational expert testified. The ALJ issued a
decision denying Milliken’s claim. Milliken appealed to the Appeals Council, which denied
review. She then sought review in the district court, and the Commissioner’s decision was
upheld. This appeal followed.
Milliken’s insured status expired on March 31, 2002. Thus, she bore the burden of proving
disability as of that date; she was not eligible for social security disability benefits after that. See
Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010).
This appeal focuses on Milliken’s mental impairments and complaints of debilitating
fatigue. At the hearing before the ALJ, Milliken testified that she suffers from MS and is tired
all the time. She claimed that she has been tired for years and has slept most of the time in the
last ten years. Milliken testified that she had exacerbations of her MS in 1997, 1999, and 2005.
She stated that during the 1997 exacerbation, she had stiffness and achiness and all she could
do was sleep. She described the 1999 MS exacerbation as a very, very bad “knife pain” in her
shoulder that lasted for about one year. She claimed that she couldn’t sleep. Milliken and her
daughter both testified that around March 2002, when the daughter was on bed rest, Milliken
wasn’t feeling well, could not do much to help the daughter, and slept much of the time.
Clinical psychologist Joseph Cools, Ph.D., testified as a medical expert at the hearing. He
had reviewed Milliken’s medical records and was present during her testimony and her
daughter’s testimony. Dr. Cools testified that some evidence in the record indicated that prior
to March 31, 2002, Milliken suffered from depression, secondary to MS. He said that depression
typically goes along with MS. He noted that Milliken had chronic pain and that she complained
of fatigue. Dr. Cools opined that Milliken’s depression limited her functioning to some degree.
He attributed to Milliken’s depression limitations in her ability to concentrate and maintain
relationships with others without having an emotional reaction. He added that she had some
limitations in her ability to maintain concentration, attention, pace and persistence, and in her
ability to engage in close relationships with others. Despite these limitations, Dr. Cools believed
that Milliken probably would have been able to have limited, casual contact with the general
public and would have been able to relate effectively to supervisors and coworkers on a very
casual basis. He opined that from a psychological perspective, Milliken would have been able
to sustain unskilled work tasks.
Susan Entenberg testified as a vocational expert (“VE”). The ALJ posed a hypothetical to
her inquiring whether an individual of Milliken’s age, education, work experience (which the
VE had described as unskilled), who was limited to lifting and carrying twenty pounds
No. 10‐1014 Page 3
occasionally and ten pounds frequently, standing frequently, walking occasionally, sitting
without limitation, with occasional postural activities, and no more than frequent use of the
hands, could perform any work. The VE responded that such an individual could perform
work at assembly jobs (10,000 jobs), packer jobs (5000 jobs), and some machine operator jobs
(5000 jobs). She testified that the jobs she identified required the individual to maintain a
certain rate of production. The VE added that the jobs required no contact with the general
public and no more than occasional contact with coworkers and supervisors.
The ALJ found that Milliken suffered from severe impairments through her date last
insured, March 31, 2002: MS, myofascial pain,* and depression, but that none of them met or
medically equaled a listed impairment. The ALJ assessed Milliken’s residual functional capacity
(“RFC”), finding that she had the capacity to perform light work with the restrictions of no
more than occasional walking, standing frequently if allowed to change position, and no more
than frequent use of her hands. The ALJ further found, based on the VE’s testimony, that
through her date last insured, Milliken was unable to perform her past relevant work, but given
her age, education, work experience, and RFC, jobs existed in significant numbers in the
national economy that she could have performed. Accordingly, the ALJ found that Milliken
was not disabled at any time through her date last insured.
Milliken sought review before the Appeals Council, which denied review, making the ALJ’s
decision the final decision of the Commissioner. Milliken proceeded to the district court. The
parties consented to a decision by a magistrate judge, and the court upheld the Commissioner’s
decision. Milliken appealed.
II. Discussion
We review the ALJ’s decision and will affirm if it is supported by substantial evidence.
Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009). Substantial evidence is “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting
Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). We do not reweigh the evidence but consider
whether the ALJ has built an “‘accurate and logical bridge’ from the evidence to her conclusion
that the claimant is not disabled.” Id. (quoting Craft, 539 F.3d at 673).
Milliken makes three arguments on appeal. She first argues that the ALJ erred in failing to
*
Myofascial pain syndrome is a chronic form of muscle pain that centers around sensitive
(trigger) points in a person’s muscles. MayoClinic.com, Myofascial pain syndrome,
http://www.mayoclinic.com/health/myofascial‐pain‐syndrome/DS01042 (last visited Oct. 8, 2010).
No. 10‐1014 Page 4
include in her RFC assessment Milliken’s limitations in concentration, persistence and pace.**
Milliken also argues that the ALJ failed to include in her RFC assessment Milliken’s limitations
in social functioning. Her last argument is that the ALJ failed to properly analyze her
complaints of debilitating fatigue.
A. Limitations in Concentration, Persistence and Pace
Milliken first challenges the ALJ’s RFC assessment on the ground that it included no
limitations in concentration, persistence and pace. In assessing an individual’s RFC, which “is
the most [an individual] can still do despite [her] limitations,” 20 C.F.R. § 404.1545(a)(1)), an
ALJ “must evaluate all limitations that arise from medically determinable impairments, even
those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009) (citing Social
Security Ruling 96‐8p). The ALJ found that Milliken had MS, myofascial pain, and depression.
The ALJ also found that the depression manifested itself primarily as fatigue, which resulted
in no more than a moderate limitation in concentration, persistence and pace. (The Social
Security Administration rates the degree of limitation in this functional area on a five‐point
scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4).)
More specifically, Milliken argues that the ALJ did not sufficiently account for her mental
limitations by limiting her to unskilled work. She relies on Stewart v. Astrue, 561 F.3d 679 (7th
Cir. 2009), Craft v. Astrue, 539 F.3d 668 (7th Cir. 2008), and Young v. Barnhart, 362 F.3d 995 (7th
Cir. 2004), to support her argument. In Stewart, we reversed the denial of a claimant’s petition
for attorney’s fees under the Equal Access to Justice Act. In doing so, we rejected the
Commissioner’s argument that the ALJ accounted for Stewart’s mental impairments by
restricting the hypothetical to the VE to simple, routine tasks. Stewart, 561 F.3d at 684‐85. In
Craft, we held that a hypothetical limited to simple, unskilled work did not account for Craft’s
mental limitations, including difficulties with memory, mood swings, and limitations in social
functioning and concentration, persistence, and pace. Craft, 539 F.3d at 676‐78. Finally, in Young,
we held that the hypothetical restricted to “simple, routine, repetitive, low stress work with
limited contact with coworkers and limited contact with the public” failed to adequately
account for all medical limitations, Young, 362 F.3d at 1004, including an “impairment in
concentration,” id. However, in concluding that the hypothetical was flawed, we emphasized
the failure to account for the limitations in temperament and social judgment, not
concentration. Id. at 1004.
**
Dr. Cools also said that Milliken is limited in her ability to maintain attention as well, but
Milliken does not assert error with respect to the omission of this limitation. Presumably this is
because the Social Security Administration’s evaluation of mental impairments includes an
assessment of functional limitations in four broad areas: activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). We
likewise limit our discussion to the limitations in concentration, persistence and pace.
No. 10‐1014 Page 5
None of these cases is on point. None holds that a limitation to unskilled work can never
adequately account for moderate limitations in concentration, persistence and pace. And none
involved a medical expert who effectively translated an opinion regarding the claimant’s
mental limitations into an RFC assessment. That occurred in Johansen v. Barnhart, 314 F.3d 283
(7th Cir. 2002), where the ALJ’s hypothetical relied on a consultative physician’s opinion that
given the claimant’s mental limitations, he could still perform repetitive, low‐stress work. Id.
at 288‐89. We held that the ALJ reasonably relied on the consultant’s mental RFC assessment
in formulating the hypothetical to the VE. Id.
We have a like situation here. Dr. Cools testified that on or before March 31, 2002, Milliken
suffered from a medically determinable mental impairment, depression. He attributed to her
depression limitations in her abilities to maintain concentration, persistence and pace, and to
engage in or maintain close relationships with others without having an emotional reaction. Dr.
Cools added that Milliken probably would have been able to have limited, casual contact with
the general public and relate effectively to supervisors and coworkers on a very casual basis.
Having identified these limitations, Dr. Cools opined that Milliken would have been able to
sustain unskilled work tasks. Thus, as in Johansen, a medical expert opined that despite the
claimant’s mental limitations, she could still perform unskilled work.
Granted, neither the ALJ’s RFC assessment nor the hypothetical to the VE included
limitations in concentration, persistence and pace. But the RFC assessment is not an end in
itself. It is but a tool with which the ALJ assesses “what work‐related activities the claimant can
perform despite her limitations,” Young, 362 F.3d at 1000, and assists in the determination
whether she can perform past relevant work or other work, see id. Here, the ALJ’s hypothetical
to the VE was limited to unskilled work and thus incorporated Dr. Cools’s assessment that
given Milliken’s mental limitations, she could still perform unskilled work. Accordingly, we
conclude that the ALJ adequately accounted for Milliken’s limitations in concentration,
persistence and pace.
B. Limitations in Social Functioning
Milliken next argues that the ALJ’s RFC assessment failed to account for her impaired social
functioning. The Commissioner concedes that the ALJ did not specifically include any
limitations in social functioning. However, he asserts that the ALJ did not find that Milliken
had any such limitations and, in any event, reasonably concluded that the jobs identified by the
VE adequately accounted for Dr. Cools’s opinion regarding Milliken’s limitations in social
functioning.
Dr. Cools testified that Milliken would have had limitations in her ability to engage in close
relationships with others without having an emotional reaction. He added that she likely would
have been able to have limited, casual contact with the general public and would have been
No. 10‐1014 Page 6
able to relate effectively to supervisors and coworkers on a very casual basis. The ALJ
questioned the VE about the amount of social contact that would be required for the jobs that
the VE had identified as ones that an individual with Milliken’s age, education, work
experience, and RFC could perform. The VE responded that the jobs she had identified did not
require any contact with the general public and would not require more than occasional contact
with supervisors and coworkers.
It was reasonable for the ALJ to conclude that the jobs identified by the VE accounted for
the limitations in social functioning noted by Dr. Cools. Although Dr. Cools opined that
Milliken could have limited, casual contact with the general public, the jobs the VE identified
required even less than that: no contact with the general public. Milliken doesn’t dispute this.
Instead, she argues that the VE’s testimony doesn’t account for her limitation to “casual
contact” with supervisors and coworkers. While the VE stated that she wasn’t sure what
“casual contact” meant, the ALJ’s interpretation that it meant “no more than occasional
contact” is not unreasonable. Milliken suggests that one could have occasional contact with
supervisors and coworkers that was intense in nature. True, but the VE identified only
unskilled jobs. “Unskilled work is work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). Unskilled work
would not seem to require intense contact with supervisors and coworkers, for example,
meetings analyzing various aspects of the job, which Milliken suggests.
It is reasonably clear that Dr. Cools was drawing a distinction between close personal
relationships on the one hand, and limited, casual contacts on the other. The jobs that the ALJ
found Milliken capable of performing were the same jobs that the VE identified as ones
requiring no contact with the general public and no more than occasional contact with
coworkers and supervisors. A restriction to no more than occasional contact with others does
not seem to be in tension with an inability to engage in close personal relationships. The ALJ
corrected any error in failing to include in the RFC assessment limitations in social functioning
by posing a hypothetical to the VE that reasonably accounted for such limitations.
C. Complaints of Debilitating Fatigue
Last, Milliken challenges the ALJ’s analysis of her complaints of debilitating fatigue. The
ALJ’s assessment essentially boils down to an adverse credibility determination which is
reviewed deferentially and upheld unless it is “patently wrong.” Schaaf v. Astrue, 602 F.3d 869,
875 (7th Cir. 2010). We examine “whether the ALJ’s reasons for discrediting testimony are
unreasonable or unsupported.” Id.
In not fully crediting Milliken’s complaints of fatigue, the ALJ stated that she found it
“interesting” that Milliken and her daughter both testified that fatigue was Milliken’s biggest
problem in March 2002, but the most contemporaneous medical record (from February 2002)
No. 10‐1014 Page 7
discussed a brief episode of numbness in the feet but no complaint of fatigue. The district court
found this analysis suspect, and the Commissioner does not defend it on appeal. The medical
record cited by the ALJ concerned a consult for a second opinion about Milliken’s leg and foot
numbness and dragging. Milliken likely had no reason to complain at that time about fatigue.
Furthermore, the medical records as a whole well document Milliken’s repeated complaints of
fatigue and tiredness to her medical providers over time. The testimony of Milliken and her
daughter also lends support to Milliken’s claims of fatigue.
We note that the ALJ did not find that Milliken did not suffer from fatigue. Rather, she
found that the intensity, persistence and limiting effects of fatigue were not debilitating. Fatigue
is a common symptom of both MS and depression. National Multiple Sclerosis Society, What
we know about MS, http://www.nationalmssociety.org/about‐multiple‐sclerosis/what‐we‐
know‐about‐ms/symptoms/index.aspx (last visited Oct. 8, 2010); Mayoclinic.com, Depression
(major depression), http://www.mayoclinic.com/health/
depression/DS00175/DSECTION=symptoms (last visited Oct. 8, 2010). That fatigue is a common
symptom of MS and depression, however, reveals nothing about the severity, intensity, or
persistence of fatigue that any individual may experience at a particular point in time. See
National Multiple Sclerosis Soc., supra (indicating that MS symptoms can change over time).
This one, weak reason for discrediting Milliken’s complaints of fatigue does not require a
remand, however.
The ALJ also gave several good reasons for finding that Milliken’s fatigue was not disabling
through her date last insured. ALJ Dougherty reasoned that prior to that date, Milliken had
discrete episodes of MS that resolved. She also stated that some of Milliken’s complaints did
not emerge until the 2005 exacerbation. In addition, the ALJ relied on Milliken’s own testimony,
which the ALJ characterized as describing “the true line of demarcation in terms of her
activities as July 2005.” The ALJ found this line of demarcation consistent with the medical
evidence. And she observed that the record contained no opinion from a treating or examining
physician indicating that prior to March 31, 2002, Milliken was disabled or had limitations
greater than those found by the ALJ. Milliken does not dispute this last assessment of the
record.
Milliken challenges the assertion that prior to her date last insured she had “discrete
episodes of MS that resolved.” She argues that the ALJ identified no medical or other evidence
to establish that her MS had resolved. We do not read the ALJ’s decision as asserting that
Milliken’s MS had resolved itself, but that the few discrete episodes of MS exacerbation that she
had before her date last insured had resolved themselves. This assertion is consistent with
Milliken’s own testimony: She testified that her last and biggest exacerbation was in 2005 and
that she had exacerbations in 1997 and 1999, during which her symptoms were aggravated. She
also agreed that MS is known for its exacerbations and then some improvement.
No. 10‐1014 Page 8
Milliken identified the 2005 MS exacerbation as the point in time when she became unable
to do activities she used to do. Significantly, it was during the 2005 exacerbation that she started
having to use a cane all the time. It was then that she began taking medication for her
depression and her mood swings “went up and down.” She also started taking medication for
fatigue during her 2005 exacerbation, though she doesn’t take it all the time. She began taking
Avonex for her MS as well. In addition, it was in 2005 that the heat started really bothering her
and caused her to limit her activities. Milliken testified that she had vision problems since 2002,
but they apparently worsened in 2005. It was then that it became more difficult for her to read
and she enjoyed reading less. She used to read about a book a week; at the hearing she testified
that she reads “once in a while.” Milliken also stated that before her 2005 exacerbation she
cooked more “family” meals and bigger meals and made pies “once in a while,” but after 2005
she could no longer do these things. She cooked only once or twice a week, made simple
meals—just salad and meat—and bought pies instead of making them.
The record also establishes that prior to the 2005 MS exacerbation, Milliken had taken a trip
to Europe in 2003. On that trip she walked and pulled luggage. The record indicates that
Milliken reported walking several (even five) miles a day and engaging in what she described
as “a vigorous day of water aerobics” prior to her latest MS exacerbation in May 2005. To sum
it up, in Milliken’s own words, since 2005 she has “changed a lot in [her] life.”
Milliken argues that the ALJ failed to detail what activities she engaged in prior to the 2005
exacerbation that indicated she was not disabled. Though the ALJ referred to Milliken’s array
of activities generally, she did specifically mention an exercise program that included walking.
The failure to specifically mention that the exercise program included, by Milliken’s own
account, “vigorous” water aerobics and walking several miles a day does not suggest that the
ALJ failed to consider the rigorous nature of Milliken’s exercise program. This case is unlike
Zurawski v. Halter, 245 F.3d 881, 887‐88 (7th Cir. 2001), in which we found that the claimant’s
daily activities were “fairly restricted”—washing dishes, helping children prepare for school,
doing laundry, preparing dinner—and not the sort that necessarily undermine or contradict
claims of disabling pain. Id. at 887. Nor is it like Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000), in
which we found that the claimant’s minimal daily activities—performing household chores
punctuated by rest, cooking simple meals, grocery shopping about three times a month,
walking with rest after three to five blocks—did not undermine her complaints of disabling
pain. Id. at 872. It is also distinguishable from Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.
2004), in which we disagreed with the ALJ that a complaint of disabling pain was inconsistent
with activities such as performing household chores and walking up to two miles. As noted,
Milliken herself testified about how her activities had changed since the 2005 MS exacerbation.
The ALJ could reasonably find that Milliken’s testimony about her activities prior to the 2005
exacerbation undermined her complaints of disabling fatigue. That the ALJ did not explicitly
mention each activity is not fatal to her analysis.
No. 10‐1014 Page 9
Moreover, the medical evidence supports the finding of a line of demarcation with the 2005
MS exacerbation. Milliken’s medical records show that she was referred to the Mayo Clinic for
symptoms that began in May 2005. Milliken began taking several medications for her MS,
fatigue, and other symptoms in 2005. Other symptoms surfaced only after Milliken’s date last
insured. For example, in April 2005, Milliken complained of paresthesia (a sensation often
described as numbness, tingling, pins and needles, or a pricking feeling, Nat’l Inst. of
Neurological Disorders & Stroke, NINDS Paresthesia Information Page,
http://www.ninds.nih.gov/disorders/parathesia .htm (last visited Oct. 8, 2010) and pain in her
hands prior to having bilateral carpal tunnel surgery. At that time, she reported that her
symptoms began two years before.
The ALJ gave good reasons supported in the record for finding that Milliken’s complaints
of debilitating fatigue and other symptoms prior to her date last insured were not fully credible.
Milliken has not satisfied her heavy burden of showing that the ALJ’s credibility determination
is patently wrong.
We recognize that the fact that Milliken’s condition may have worsened at the time of the
2005 MS exacerbation does not compel the finding that she was not disabled prior to her date
last insured. See Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995) (“The fact that, according to her
daughters, Wilder got worse in 1988 and 1989 does not indicate how bad she was in 1986.”).
Nonetheless, it is Milliken’s burden to produce medical evidence to support her claim of
disability prior to her date last insured. See Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008).
The ALJ’s conclusion that she failed to establish disability prior to that date is supported by
substantial evidence.
III. Conclusion
We AFFIRM the district court’s judgment.